1. The point which arises in this reference is as to whether when a complaint has been filed against an accused per9on for offences some of which are triable exclusively by the Magistrate and some by the Sessions Court and the accused after trial is discharged in respect of all the offences, an order for compensation against the complainant, under Section 250 can or, cannot be passed.
2. The complaint was filed under Sections 395, 323 and 330, I.P.C. The learned Magistrate found that no case had been made out against the accused in respect of any of the offences mentioned. He accordingly discharged him. He farther ordered the complainant to pay Rs. 50 as compensation to the accused. The complainant applied in revision to the Additional Sessions Judge who has referred the case to the High Court. The learned Judge has declined to interfere on the merits, but has recommended that the order directing compensation to be paid should be set aside. He has cited the case of The Crown v. Hamir Chand (1902)14 PR 1902 Cr. and the case reported in Weir 11, 315. The learned Magistrate in his explanation has, however, relied on the cases of Mahaganam Venkatrayar v. Kodi Venkatrayar AIR 1922 Mad 223.
3. The Punjab case is not in point because the offence with which the accused was charged was one exclusively triable by the Sessions Judge and there was no other offence complained of which could have been tried by the Magistrate himself. The other case referred to by the learned Judge is not available here. Similarly the case relied upon by the learned Magistrate is not directly in point. In that case the Magistrate had regarded the offence complained of as being one under Section 463, I.P.C. (which he had jurisdiction to try), and had tried the accused for that offence and discharged him and ordered compensation. In the High Court it was contended that the offence really fell under Section 487, I.P.C., and the order for compensation was therefore illegal. The learned Judge held that inasmuch as the Magistrate had not proceeded illegally in trying the accused for the lesser offence he was not acting illegally in awarding compensation.
4. It may at first sight appear that inasmuch as the offence under Section 323 was at any rate triable by the Magistrate the order for compensation is not illegal merely because there were other offences also with which he was charged. It has however to be borne in mind that the methods prescribed for an enquiry into cases triable by a Court of Session, the trial of summons-cases and warrant cases are distinct. Section 250 which empowers a Magistrate to grant compensation, when he discharges an accused person on a finding that the complaint was false, frivolous or vexatious, occurs in Ch. 20, of the Code which relates to the trial of summons cases. There is no similar provision in Ch. 18, which deals with an enquiry into cases triable by the Court of Session. Although in the complaint there was a mention of the offence of Section 323 which was triable in accordance with the procedure laid down in Ch. 20, nevertheless inasmuch as it was joined with offences under Sections 395 and 330 the Magistrate could not follow the procedure for the trial of summons cases. As a matter of fact he proceeded to enquire into the complaint under Ch. 18 of the Code. The order of discharge which ha passed must have been under Section 209 of the Code. When an accused is discharged under that section an order for compensation cannot be made against the complainant.
5. The learned Magistrate in his explanation suggests that the discharge was under Section 253, Criminal P.C., though the order does not expressly say so. I cannot understand how he could have proceeded to try these cases as warrant cases under Ch. 21 when two of the offences, namely, those under Sections 395 and 330 were triable exclusively by the Sessions Court, Assuming, however, that the discharge was under Section 353, Criminal P.C., I would still be of opinion that the order when issued was illegal. That order contained as it is in Section 250 which occurs in Ch. 20 must be confined to a trial of summons cases. There is no such similar provision in Ch. 21 which deals with the trial of warrant cases. This view finds some support from the cases of Het Ram v. Ganga Sahai AIR 1918 All 126. There, too, one offence was triable exclusively by the Sessions Court and the other two offences by the Magistrate. In the present case the trial undoubtedly was not under Ch. 20 dealing with summons cases. The order of compensation was, therefore, illegal. I accept the reference and set aside the order of the Magistrate so far as it directs the complainant to pay compensation of Rs. 50 to the accused. The order of discharge, however, will stand.